Stepfamilies and the Law

The subject of nontraditional families is, and continues to be, an important social and legal issue on the national agenda. For those researching and interested in one particular type of nontraditional family - stepfamilies - Mahoney's book, Stepfamilies and the Law (University of Michigan Press, 1994), continues to be an invaluable resource. Mahoney's work provides in-depth details and analysis of the state of family law in the United States and she addresses the problems of the existing family law system and the need for legislators to take action to improve it. The traditional system of family law is premised on the important assumption that the biologic mother and father have exclusive relationships with their children. Within this framework, the legal recognition of stepparent-child relationships calls into question established social and legal assumptions about the family. Stepfamily members and others seeking a broader legal definition of the family have frequently encountered stiff resistance, because their position is viewed as a threat to traditional family values. Each time the question of legal status for stepparents and stepchildren is raised, the particular lawmakers appear to balance anew all of the interests regarding stability and protection for stepfamily members, on the one hand, against reluctance to complicate the system by moving away from the preference for the nuclear family. Different weight has been assigned to these competing values, depending upon the particular legal context and the philosophical disposition of the decision-maker. The overall result of this process is an unsettling lack of consistency from issue to issue and from state to state in the legal definition of the stepfamily. Still, it is fair to summarize the current law as denying legal recognition to stepfamilies, subject to a number of specific judicial and legislative exceptions in the laws of each state. The increasing number of individuals who are living in nontraditional families, especially stepfamilies, is necessarily changing the way in which Americans think about the family. For lawmakers, the task of translating these social realities into a responsive system of family laws in the future is a challenging one. Only when this challenge has been met will the basic goals of the family law system be realized for the families of the twenty-first century.

Other common household arrangements included married couples without children (twenty-nine percent),2 unmarried adult partners who reside to gether with or vvithout children (three percent),3 single parent families (eleven percent),4 stepfamilies (six percent),5 and individuals liVing alone (twenty-five percent).6 These figures represented a significant increase in the number of nontraditional family households; for example, the number of single parent households increased forty-one percent between 1980 and 1990, and the number of stepfamily households increased thirty-six percent during the same decade. 7 According to the 1990 Census, approximately 5.5 million married couple households contained at least one stepchild under age eighteen. This number constituted twenty-nine percent of all married-couple house holds with children. The total number of stepchildren residing in these families was 7,208,000. 8 Indeed, demographers predict that a high propor tion of children, perhaps one in three, can be expected to spend some childhood years residing in a stepfamily. 9 In an earlier era, when divorce and the birth of children outside of marr:iage were less common, most stepfamilies were formed upon the remarriage of a widow or widower, who was the parent of minor children. Today, many stepfamilies are still formed under these circumstances, but most come into being when REMARRIAGE IN THE 1990's (October 1992 [hereinafter CURRENT POPULATION RE PORTS], 10 (Table L) (reporting 19,59$,000 married couple households with biologic and adopted children in 1990). 7. CURRENT POPULATION REPORTS, supra note 1, at 10 (Table K).
8. CURRENT POPULATION REPORTS, supra note L at 10 ( the custodial parent maD"ies for the first time or remarries following a divorce. 10 The demographic information provided by the Census Bureau further classifies stepfamilies according to the gender of the stepparent. Not sur plisingly, the large majority (ninety-one percent) of stepparents are men; this statistic mirrors the fact that most single custodial parents are women. Still, more than a half million children resided in the home of a father and stepmother in 1990. 11 In counting the number of stepfamily households in America, the Census Bureau defines a stepfamily as the household unit created vvhen an individual marries and resides with the custodial parent of minor children. Notably, the Census Bureau's definition of stepfa.l11ily does not include the situation where an adult marries the noncustodial parent of minor children. Furthen11ore, the person who cohabits with a custodial parent, outside a formal marriage, does not create a stepfamily under this definition. The same definitional limitations have, for the most part, been invoked in dis cussions about stepfamilies in the legal context. 12 To date, lawmakers have been slow to recognize many nontraditional family relationships, including the relationships created bet\veen resi dential stepparents and their stepchildren. 13 Most of the important legal 10. See IVlarilyn Ihinger-Tallman & Kay Pasley: Divorce and Remarriage in the American Family: A Historical Rel'ie7.u, in REMARRIAGE Al"D STEPPARENTING, supra note 9, at 3, 4-11 (describing the substantial decrease in the number of stepfamilies f0l111ed upon the remarriage of a widowed parent, and the corresponding increase in the number of stepfamilies formed by the marriage of a custodial parent who is divorced or never before married).
11. CURRENT POPULATION REpORTS, supra note L at 10 (Table L). Throughout this treatise, the terms "stepparent" and "custodial parent" are used in a gender neutral fashion. The only exception appears in chapter 8, which describes the laws governing name changes for stepchildren, where the assumptions are made that stepchildren bear the surname of their biologic father when the stepfamily is formed, and that the custodial parent is the mother.
12. There are exceptions to the general rule that legal issues involving step families arise only in situations where the stepparent marries the custodial parent and resides with the children. See, e.g.. Rosenberg v. Silver, 762 F.2d 255 (2d Cir. 1985) (recognizing defense of parent-child tort immunity for the husband of an injured child's noncustodial mother, who did not reside with the child). Furthermore, the definitions can become blurred in families where unmarried parents share the joint legal and physical custody of their children. Arguably. upon the maniage of either parent in this situation, the new spouse would be regarded as a stepparent even under the limited definition of that tenn.
13. See, e.g., Katharine T. Bartlett issues that affect family members, in the areas of support, custody, inheli tance, torts, workers' compensation, and climinallaw, are regulated at the state level. Here, the starting premise is that stepparents and their step children are legal strangers to each other. The current "law of stepfamilies" consists of a series of limited exceptions to this principle. Furthermore, with respect to many important issues, there is no unif0l111 treatment of the stepparent-child relationship from one state to another. Thus, a compre hensive definition of the stepfamily in American law has yet to be formu lated.i-l The protection of the law is typically invoked by stepfamily members, who have established relationships of economic and emotional interdepen dence, at times of clisis or transition within the family. Frequently, the failure to recognize the stepparent-child relationship in these circumstances re sults in direct hardship for individual family members. For example, the associational interests of a residential stepfather and his preschool-age step daughter were placed in jeopardy when their family vvas disrupted by the custodial mother's sudden death. At that time, the biologic father, who had not contacted nor supported his child during the preceding two-year period, sought and obtained custody. Although the stepfather had served as the child's psychological father dUling the same period, no legal recognition was extended to the stepfather-child relationship in this situation. i5 Another stepchild endured economic hardship \vhen his mother's re quest for child support \vas denied, even though the boy had become depen dent upon his stepfather over an extended period of time. In this case, the stepfather encouraged the mother to terminate the biologic father's relation ship with the child, promised to adopt the child, served as the child's father during the parties' seven-year maniage, and continued to serve as the plimary custodian for more than a year follovving their divorce. Still, no future support payments \-vere required when the stepfather subsequently chose to terminate the relationship with his stepson. I6 14. In 1887, the Family Law Section of the American Bar Association began work on the IVlodel Act Establishing Rights and Duties of Stepparents. The Act defines stepparent as "a person \\'ho is married to the person who ... has custody of a minor child." The Act addresses three key issues relating to stepparent rights and Introduction . oS In a final illustration, the exclusion of stepfamilies from the definition of criminal incest left another important interest of stepchildren un protected. A stepfatheT, who had engaged in sexual activity with his step daughter, was acquitted of this criminal charge because the relevant statu tory definition of incest was restlicted to biologic families. The Mississippi Supreme Court, vvhich announced this result, also expressed dissatisfac tion with the underlying rule of Im.·v.

Polikoff, This Child Does Hare Two A/others: Redefining Parenthood to ;Heet the Needs of Children in Lesbian-A'lother and Other
[vVle regret that a man should go unpunished, if guilty of so gross a violation of morallavv, of domestic virtues, of the obligations of a citizen. . . .
[A]lthough the violator of a most sacred obligation will escape merited justice in this world, through the neglect of the law makers to provide for such a case, he cannot escape the just judgment of that Higher Court, where the sins and the secrets of all vvil1 be ex posed, and SUitably adjudged. 17 As illustrated by stepfamily cases in the fields of incest, child support, and custody, the exclusive focus of the law on traditional nuclear families leaves other people unprotected in their personal relationships. In recent years, scholars of the family have criticized this gap between cunent legal norms and the actual family experiences of many individuals in our soci ety.18 Besides the direct legal burdens imposed on nontraditional families, an additional cost associated with the narrow definition of family is the absence of clear and positive roles for stepfamily members.
Researchers have consistently observed that people entering step families have no clear expectations about family roles. 19 Furthermore, for whatever reasons, many cultural expectations about the stepfamily, re flected in our language and in the popular culture, are negative. 20  stepchild of fiction. Indeed, the tern1 "stepchild" is used in many contexts as shorthand for "second class," as illustrated by the following titles of two recent law review articles: Secondary Trading: Stepchild of the Securities Law, and Stepchild of the New Lex Mercatoria: Private International Lcrw fmm the United States Perspective. Of course, these negative portrayals do not necessarily depict or influence the reality of modern stepfamilies. Still, scholars of the family have concluded that the absence of clear and positive role models creates adjustment problems over time within many step families. 21 It is possible that the current state of the law contributes to the problem of ambiguity about stepfamily roles. Clearly, the legal system has failed to recognize, on any consistent basis, that the relationship between step parent and child entails enforceable lights and duties. The actual impact of the law upon the feelings and behavior of individuals in stepfamilies is, of course, difficult to measure. Nevertheless, Professor of Psychology Mark A. Fine found it "plaUSible that the lack of legal precision is one among many factors which perpetuates the uncertain status that stepfamilies have in our culture. "22 Another scholar, Professor Gary B. Melton, whose work in the field of legal psychology has focused on the relationship between lavv and human behavior, made the follovving general observation about the impact of formal legal status on nontraditional families.
The adoption of a broad definition of family often both brings law into harmony with changing social reality and promotes ends consis tent with public policy.
. . . The degree of legal recognition that valious relationships at tain is likely to affect their stability and individuals' sense of satisfac tion with them. 23 The h'aditional family law system is concen1ed with the protection of individuals, especially children, who form economic and emotional interde pendencies within the family. Another important goal, highlighted in the observations by Professors Fine and Melton, is the enhancement of cer tainty and stability in family relationships. These purposes deserve the attention of scholars and lawmakers who analyze the legal status of step families.
Criticism of the status quo is the first and easiest step in evaluating the cunent laws that regulate stepfamilies. It is more difficult to affirmatively define a legal stepparent-child status, which would recognize and protect stepfamily members while preserving a fa~mily laYV system that is fair, cer tain, predictable, and not unduly burdensome on those who must enforce the laws. In defining the stepparent-child status, two important questions must be answered. First, what constitutes a legally significant stepparent child relationship? Second, what rights and responsibilities should be asso ciated with stepfamily membership?
The simplest answer to the first inquiry appears in the Census Bu reau's definition of stepfamily: the relationship formed whenever an individ ual manies the custodial parent of a minor child and thereafter resides with the child. This basic definition is employed in a number of the existing state laws that recognize stepfamilies for specific purposes. For example, the MissoUli stepparent support statute provides, in a straightforward manner, that "[a] stepparent shall support his or her stepchild to the same extent that a natural or adoptive parent is requu"ed to support his or her child as long as the stepchild is living in the same home as the stepparent. "24 However, many scholars and lawmakers have concluded that some thing more than maniage and a shared residence should be required before legal consequences attach; additional criteria generally relate to de facto relationships established over time in the stepfamily. According to this anal ysis, legal rights and duties should exist only if the residential stepparent assumes an active custodial role, for example, by participating in the child's education, discipline, and moral training, or by making financial contribu tions to the child's support.
Indeed, judges have developed a legal standard, called the in loco parentis doctrine, which embodies this approach to identifying legally sig nificant relationships outs~de the biologic or adoptive family. In loco par entis, which in Latin means "in the place of a parent," applies not only to stepfamilies, but to any situation where an adult informally assumes custo dial responsibility for a child. The COUTts have applied the doctrine, hovvever, only in certain fields of law. For example, stepparents who stand in loco parentis to theil' stepchildren have fTequently been accorded the same treat ment as biologic parents in the aTeas of workers' compensation and paTent child tort immunity. Conversely, the courts have rejected the in loco par entis doctrine as a basis for stepfamily claims in many other important fields, including inheritance and v\<Tongful death. Like the common law in loco parentis doctrine, many of the state statutes that recognize stepfamilies for a specific purpose are limited to those situations where the stepparent and child are tied together by more than the stepparent's mal1.iage to the child's parent. For example, the New Jersey inhelitance tax statute establishes preferential rates and exemptions for bequests made to "any child to whom the decedent ... stood in the acknowledged relation of a parent, provided such relationship began at or before the child's fifteenth birthday and was continuous for ten years there after. "25 Similarly, the crime of "sexual abuse by a parent, guardian, or custodian" in the \-Vest Virginia Code applies to "the spouse" of a parent "where such spouse shares actual physical possession or care and custody of a child. "26 Each of these statutory standards, like the common law in loco parentis standard, requires the assumption of some form ofresponsibility by the stepparent before legal rights and duties are imposed.
The use of this type of differential standard is supported by the findings of social scientists who have studied families. Researchers have found that the relationships actually established between stepparents and their step children vary widely from one family to the next, for example, in the level of commitment, amount and quality of personal interaction, and the degree of economic and custodial responsibility assumed by the stepparent. 27 Vari able factors that appear to influence these matters include the age of the child when the stepfamily is formed, the length of the mariiage, the pres ence of a noncustodial parent, and the presence of stepsiblirigs in the fam ily.28 The empirical information about the wide range of stepfamily experi ences, coupled \vith plivate and societal expectations in this field, support the efforts by lawmakers to develop standards that segregate those step families where meaningful family ties exist.
The creation of legal standards that are premised on actual relation ships in the stepfamily is also consistent with the theories of family scholars "vho have addressed the question of legal status outside the nuclear family in a more comprehensive fashion. Thus, one 'widely discussed theory, vvhich was disseminated during the 19705 by the authors of a book entitled Beyond the Best Interests of the Child, emphasized the importance of psychological, rather than biologic, parenthood. The psychological parent is defined as "one who, on a continuing, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child's psychological needs for a parent, as well as the child's physical needs. "29 According to this theory, the laws should protect relationships between children and their psychological parents, because disruption of these bonds would be harmful to the children.
A more recent and more refined proposal appears in Katharine T. Bartlett's article, Rethinhing Parenthood as an Excllls-i"ve Statlls: The Need For i\"lore Legal Alternatives Wizen the Premise of the Nuclear Family Has Failed. Professor Bartlett has proposed that adult-child relationships outside the nuclear family should be recognized whenever the following cliteria are met.
The first criterion is that the adult have had physical custody of the child for at least six months.... "Mutuality" is a second criterion for psychological parenthood. To meet this criterion, the adult must demonstrate that his motive in seeking parental status is his genuine care and concern for the child.... Mutuality also denotes that the child perceives the adult's role to be that of parent. ...
As a final criterion for psychological parenthood, the ... adult [must] prove that the relationship \vith the child began \vith the con sent of the child's legal parent or under court order. This require ment is designed to avoid enhancing incentives for child snatching. 3o According to Professor Bartlett's own analysis, a stepparent might qualify as a parent figure under this test, at the same time that the stepchild's t"vo biologic parents retain their legal roles. 31 Once the limitations on legally significant stepparent-child relation ships have been established, under the in loco parentis doctline or some other standard, the remaining questions involve the scope of legal rights and responsibilities \vithin the stepfamily. The logical starting point in this analysis is that stepfamilies could be treated like biologic families; that is, the same legal lights enjoyed by biologic parents and children could be extended to qualifying stepparents and their stepchildren. Indeed, a nUl11 ber of the existing laws dealing with stepfamilies for specific purposes treat them on a par with biologic families. For example, under the New Jersey inheritance tax statute quoted previously, both biologic children and quali fying stepchildren, who receive bequests upon the death of a parent or stepparent, enjoy the same preferential tax rates and exemptions. 32 A second illustration of eqUivalent treatment of parent-child and stepparent child relationships appears in the laws governing the discipline of children. In most states, stepparents who stand in loco parentis to their stepchildren are entitled to discipline them, and are subject to the same limitations on the use of force as biologic parents. 33 The biologic family is not, however, the only model for defining legal rights in the stepfamily. For example, state lawmakers have established entirely different child support responsibilities for parents and stepparents. In most jurisdictions today, stepparents have no enforceable obligation whatsoever to support their stepchildren. But even in the eighteen states where lawmakers have imposed a statutory stepchild support duty,34 it is much less significant than the corollary responsibility of biologic and adop tive parents. Most notably, the obligation of stepparents does not survive the termination of the maniage vvhich created the stepfamily. 35 Of course, this durational limitation stands in stark contrast to the universal rule in the biologic family, vvhere support obligations continue at least until children reach the age ofmajOlity. Professor David L. Chambers has pointed out that the cunent law of support in stepfamilies (no obligation following divorce) and in natural families (full support responsibility dming every child's mi nority) does not exhaust the available options. Thus, for example, law makers could establish a postdivorce stepparent obligation that endures for a shorter period of time than the duty of biologic parents. 36 Indeed, in thinking about a legal definition of the stepfamily status, it is both liberating and overwhelming to consider all of the available options. As to each legal issue, the inquiry must be whether the family-related policies that justify regulation in the biologic family also extend to the stepfamily; and if so, what fonn of regulation is appropriate in this nontraditional family setting. The task of segregating eligible stepparents and stepchildren, and then identifying appropliate legal rights and responsibilities for them, is a difficult and complex one. The absence of any comprehensive definition of stepfamily fights in the law can be explained in part by the difficulty of the undertaking.
Surely, one attractive feature of the traditional model of the family is its simplicity: two biologic parents and their children, with immutable rights and responsibilities, is an easy model for everyone to work with. Parents, children, employers, teachers, doctors, and other third parties all know that the two parents have an exclusive claim to and responsibility for their children. In reality, the addition of a residential stepparent complicates a child's daily life in many ways. Developments in the law, acknowledging the stepparent's presence, would complicate the legal picture as well, with some resulting uncertainty about the lines of authority and responsibility within the family. This is especially apparent when the biologic parent who is not married to the stepparent plays an active role in the child's life. The challenge for the legal system is to formulate laws that fairly reflect and define the interests of family members without creating undue confusion or uncertainty. 37 The practical difficulties involved in expanding the legal definition of the family are apparent. But the cumulative decision of la\vmakers to keep their distance from the subject of stepfamilies is rooted as vyell in a philo sophical reluctance to move away from the nuclear family as an exclusive legal model. The traditional system of family Im·v is premised on the impor tant assumption that the biologic mother and father have exclusive relation ships with their children. \Vithin this framework, the legal recognition of stepparent-child relationships calls into question established social and le gal assumptions about the family. Stepfamily members and others seeking a broader legal definition of the family have frequently encountered stiffresis tance, because their position is viewed as a threat to traditional values.
The remaining chapters explore in detail the current law of step families, The valious issues affecting stepfamilies are typically raised 011e by-one in the state courts and legislatures. Each time the question of legal status for stepparents and stepchildren is raised, the particular lawmakers appear to balance ane"v all of the competing interests regarding stability and protection for stepfamily members, on the one hand, against the reluc tance to complicate the system by moving away from the preference for nuclear families. Different \veight has been assigned to these competing ,,'alues. depending upon the particular legal context and the philosophical 37. The tension between the goals of fain1ess. on the one hand. and certainty and predictability. on the other. disposition of the decision maker. The overall result of this process is an unsettling lack of consistency from issue to issue and from state to state in the legal definition of the stepfamily. Still, it is fair to summarize the current law as denying legal recognition to stepfamilies, subject to a number of specific judicial and legislative exceptions in the laws of each state.
The increasing number of individuals who are living in nontraditional families, especially stepfamilies, is necessarily changing the way in which Americans think about the family. For lawmakers, the task of translating these social realities into a responsive system of family la\vs in the future is a challenging one. Only when this challenge has been met will the basic goals of the family lmv system be realized for the families of the twenty-first century.